N.L. man says he was fired for pointing out safety concern at Muskrat Falls

Workers are seen during concrete forming work on the spillway Muskrat Falls in a July 2015 photo

A former safety advisor at the Muskrat Falls construction site in Labrador says he was terminated from his job in 2016 for doing his job — pointing out a potential safety hazard and seeking to get it promptly rectified.

Brian Tucker, who at the time worked with HSE Integrated Ltd., said that because his immediate supervisor and manager both failed to act on the safety issue to his satisfaction, he contacted the site project manager at Astaldi Canada — the primary contractor on the Muskrat Falls site — and the safety concern was immediately addressed.

HSE Integrated is, according to its website, North America's expert provider of industrial health and safety services and was under contract to Astaldi to provide safety services at Muskrat Falls.

Tucker’s actions, however, caused problems for HSE Integrated. The company subsequently lost its contract with Astaldi Canada.

Tucker got fired.

In his termination letter it states that he failed to follow proper company protocols and violated the company’s code of conduct — in particular on Feb. 26, 2016 by emailing a HSE Integrated customer (Astaldi) alleging deficiencies in HSE rescue policies.

“We have policies and procedures in place which allow employees to come forward to express their concerns,” the letter stated.

Tucker asked the company to reconsider and review the circumstances of his job termination.

Documents state that an internal investigation by HSE Integrated resulted in the following response to Tucker: “HSE’s position remains that you were terminated as a result of your failure to follow the proper chain of command relative to your safety concerns, not because you raised the concerns themselves.”

Tucker took his case for alleged wrongful dismissal to the province’s Labour Relations Board and charged that HSE Integrated had violated the province’s Occupational Health and Safety Act.

HSE Integrated responded by saying the board did not have jurisdiction to hear Tucker’s complaint because Tucker didn’t take his safety concerns to the province’s Workplace, Health, Safety and Compensation Commission, or to an officer or another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers at his workplace.

The Labour Relations Board agreed with the company’s argument and rejected Tucker’s complaint ruling it did not have jurisdiction to hear it.

Tucker is now taking the case to the Supreme Court of Newfoundland and Labrador asking the court to overturn the Labour Relations Board decision. The case will be called in court in September when a date for a hearing is expected to be set.

Tucker was initially hired by HSE Integrated in February 2015. He worked at both the company’s sub-station in Mount Pearl and as a rescue advisor at Muskrat Falls before being fired in March 2016.

In February 2016, during his first night back at the site on a two-week rotation, he responded to an incident where a worker fell off a scaffold and dislocated his shoulder. He noted there were issues during the rescue operation including problems with getting the injured worker lowered from the height he was working at, mainly because there were no trained rescue personnel or proper equipment needed operating in that area.

Tucker claims he received confusing and conflicting information from his supervisor and manager about what the role of a “rescue advisor” was at Muskrat Falls. He states that, as a safety advisor, he was told to remain hands off and to provide rescue equipment only for Astaldi workers and advise them on how to perform a rescue.

Tucker said that with the number of workers expected to increase in the area of the accident in the following weeks and working at heights, he felt there was a “high potential safety risk” present without trained rescuers at the location. His concern was for both possible injuries and for the safety of untrained workers conducting a technical rescue. He expressed that concern to his supervisor and manager.

When they failed to address his concerns to his satisfaction, he sent an email to Don Delarosbil at Astaldi Canada. Astaldi addressed the issue by hiring its owned trained rescuers and subsequently cancelled the contract with HSE Integrated.

The Labour Relations Board pointed out that Tucker could not claim protection under the province’s Occupational Health and Safety Act because he did not report his concern to the Workplace Health Safety and Compensation Commission or to a representative of the Occupational Health and Safety division of the provincial government.

“With new work planned and more workers arriving on site, I felt that action needed to be taken before someone was seriously injured or killed,” Tucker stated. “To the best of my knowledge, Mr. Delarosbil took immediate action to resolve the issue.

“At the time I felt that I didn’t have another choice. I felt that I exhausted my options outside of calling provincial Occupational Health and Safety, which I regret not doing now. I thought about contacting Occupational Health and Safety a number of times but decided to contact the project manager, Don Delarosbil, in confidence.”

Tucker also went to Occupational Health and Safety after the fact, but given that the safety issue had already been addressed at the site, there was nothing they could do.

“Instead of reporting to the site project manager, had I reported it to them first, (Occupation Health and Safety) would have had the contractor correct the problem immediately,” Tucker said. “They probably would have shut the site down until the issue was addressed. But the risk was low at the time until more workers arrived, so I thought it could be dealt with without having to shut the site down.”

In its ruling the Labour Relations Board noted that while the loss of his job has had serious consequences for Tucker, the board could not overstep its jurisdiction. But, it added, the ruling does not preclude him from taking his claim to another venue for consideration if he alleging wrongful termination.